Rehnquist, Scalia Offer Strong Court Credentials

WHEN WARREN BURGER was appointed chief justice of the U.S. Supreme Court 17 years ago, conservatives hailed the end of an era of unprecedented judicial activism.

When he resigned Tuesday, he left behind a record that proves again that the ideological labels that justices bring to the bench don`t always match their performance.

While Burger did lead the court along a more cautionary, conservative course, he moved often from the right to the middle-of-the-road and occasionally much too far to the left to please strict constructionists.

Now, as is customary when the makeup of the high court changes, legal scholars and lawmakers again are trying to chart the direction the court will take when the new alignment is complete.

President Reagan has nominated Justice William Rehnquist to replace Burger and Judge Antonin Scalia to fill the vacancy created by Rehnquist`s promotion. Both are considered more conservative than Burger and both are expected to be quickly confirmed by the Senate.

Liberals will criticize the president for making political appointments, for trying to load the court with idealogues who will promote his conservative policies long after he`s left office.

That is a president`s prerogative, one that conservatives must live with during a liberal administration and vice versa.

To his credit, Reagan did not select hacks in his effort to put his imprint on the court.

The 61-year-old Rehnquist`s credentials, after 15 years on the Supreme Court, are impeccable. Scalia has practiced law, taught law, served on the U.S. Court of Appeals for the District of Columbia and is well-respected for his legal intellect.

While his presence will have little immediate impact on the court`s character, Scalia is, at 50, the youngest member and will be a conservative force for years to come.

His record indicates that his convictions will take him down roads that will offend supporters of women`s rights, abortion, affirmative action, government regulation, freedom of the press and the public`s right to know.

That list contains a number of disturbing constructionist tenets.

Like the retiring chief justice and many of his Supreme Court predecessors, however, Scalia may not always play the role expected of him once confronted with issues that don`t fit easily into ideological molds.

Burger voted with the majority when abortion was legalized in 1973. He was an advocate of school prayer but on other religious issues was a proponent of the separation of church and state. He helped expand women`s rights, defended some aspects of affirmative action, and authored the opinions that established busing as a means to promote integration of public schools.

On other issues, such as weakening the rights of suspected criminals by relaxing rules governing search, seizure and interrogation, he followed the conservative line.

Burger`s greatest contributions to the judicial system were his efforts to reform it. He was an activist who considered himself chief justice of all state and federal courts. In that role, he promoted everything from prison reform to better training for lawyers, many of whom he considered incompetent and greedy.

Now comes the Rehnquist court. Liberals will wring their hands. Conservatives will gloat. And history indicates that not all of the fears of the former nor the expectations of the latter will be realized. The system has worked that way for almost 200 years.